Judicial Procedures Reform Bill of 1937

New Deal Following the Wall Street Crash of 1929 and the onset of the Great Depression, Franklin Roosevelt won the 1932 presidential election on a promise to give America a "New Deal" to promote national economic recovery. The 1932 election also saw a new Democratic majority sweep into both houses of Congress, giving Roosevelt legislative support for his reform platform. Both Roosevelt and the 73rd Congress called for greater governmental involvement in the economy as a way to end the depression. During the president's first term, a series of successful challenges to various New Deal programs were launched in federal courts. It soon became clear that the overall constitutionality of much of the New Deal legislation, especially that which extended the power of the federal government, would be decided by the Supreme Court. Oliver Wendell Holmes Jr. Holmes's loss of half his pension pay due to New Deal legislation after his 1932 retirement is believed to have dissuaded Justices Van Devanter and Sutherland from departing the bench. A minor aspect of Roosevelt's New Deal agenda may have itself directly precipitated the showdown between the Roosevelt administration and the Supreme Court. Shortly after Roosevelt's inauguration, Congress passed the Economy Act, a provision of which cut many government salaries, including the pensions of retired Supreme Court justices. Associate Justice Oliver Wendell Holmes Jr., who had retired in 1932, saw his pension halved from $20,000 to $10,000 per year. The cut to their pensions appears to have dissuaded at least two older Justices, Willis Van Devanter and George Sutherland, from retirement. Both would later find many aspects of the New Deal unconstitutional. Roosevelt's Justice Department The flurry of new laws in the wake of Roosevelt's first hundred days swamped the Justice Department with more responsibilities than it could manage. Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or review of much of the White House's New Deal legislation. The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior Secretary Harold Ickes complained, Attorney General Homer Cummings had "simply loaded it [the Justice Department] with political appointees" at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges. Compounding matters, Roosevelt's congenial Solicitor General, James Crawford Biggs (a patronage appointment chosen by Cummings), proved to be an ineffective advocate for the legislative initiatives of the New Deal. While Biggs resigned in early 1935, his successor Stanley Forman Reed proved to be little better. Some recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial, differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court. At the same time, however, the perception of a conservative/liberal divide does reflect the ideological leanings of the justices themselves. As William Leuchtenburg has observed: Whatever the political differences among the justices, the clash over the constitutionality of the New Deal initiatives was tied to clearly divergent legal philosophies which were gradually coming into competition with each other: legal formalism and legal realism. During the period c. 1900 – c. 1920, the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law, given the lack of a central, governing authority in those legal fields other than the precedent established by case law—i.e. the aggregate of earlier judicial decisions. The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence which viewed the U.S. Constitution as a static, universal, and general document not designed to change over time. Under this judicial philosophy, case resolution required a simple restatement of the applicable principles which were then extended to a case's facts in order to resolve the controversy. This earlier judicial attitude came into direct conflict with the legislative reach of much of Roosevelt's New Deal legislation. Examples of these judicial principles include: • the early-American fear of centralized authority which necessitated an unequivocal distinction between national powers and reserved state powers; • the clear delineation between public and private spheres of commercial activity susceptible to legislative regulation; and • the corresponding separation of public and private contractual interactions based upon "free labor" ideology and Lockean property rights. At the same time, developing modernist ideas regarding politics and the role of government placed the role of the judiciary into flux. The courts were generally moving away from what has been called "guardian review" — in which judges defended the line between appropriate legislative advances and majoritarian encroachments into the private sphere of life—toward a position of "bifurcated review". This approach favored sorting laws into categories that demanded deference towards other branches of government in the economic sphere, but aggressively heightened judicial scrutiny with respect to fundamental civil and political liberties. The slow transformation away from the "guardian review" role of the judiciary brought about the ideological—and, to a degree, generational—rift in the 1930s judiciary. With the Judiciary Bill, Roosevelt sought to accelerate this judicial evolution by diminishing the dominance of an older generation of judges who remained attached to an earlier mode of American jurisprudence. == New Deal in court ==

Owen J. Roberts. The balance of the Supreme Court in 1935 caused the Roosevelt administration much concern over how Roberts would adjudicate New Deal challenges. Roosevelt was wary of the Supreme Court early in his first term, and his administration was slow to bring constitutional challenges of New Deal legislation before the court. However, early wins for New Deal supporters came in Home Building & Loan Association v. Blaisdell and Nebbia v. New York at the start of 1934. At issue in each case were state laws relating to economic regulation. Blaisdell concerned the temporary suspension of creditor's remedies by Minnesota in order to combat mortgage foreclosures, finding that temporal relief did not, in fact, impair the obligation of a contract. Nebbia held that New York could implement price controls on milk, in accordance with the state's police power. While not tests of New Deal legislation themselves, the cases gave cause for relief of administration concerns about Associate Justice Owen Roberts, who voted with the majority in both cases. Roberts's opinion for the court in Nebbia was also encouraging for the administration: Chief Justice Hughes arranged for the decisions announced from the bench that day to be read in order of increasing importance. ''Humphrey's Executor v. United States, Louisville Joint Stock Land Bank v. Radford, and Schechter Poultry Corp. v. United States''. Further New Deal setbacks File:Homer Cummings, Harris & Ewing photo portrait, 1920.jpg|thumb|right|Attorney General Homer Stillé Cummings. His failure to prevent poorly drafted New Deal legislation from reaching Congress is considered his greatest shortcoming as Attorney General. However, New Deal supporters still wondered how the AAA would fare against Chief Justice Hughes's restrictive view of the Commerce Clause from the Schechter decision. == Antecedents to reform legislation ==

James Clark McReynolds. A legal opinion authored by McReynolds in 1914, while U.S. Attorney General, is the most probable source for Roosevelt's court reform plan. The coming conflict with the court was foreshadowed by a 1932 campaign statement Roosevelt made: An April 1933 letter to the president offered the idea of packing the Court: "If the Supreme Court's membership could be increased to twelve, without too much trouble, perhaps the Constitution would be found to be quite elastic." The next month, soon-to-be Republican National Chairman Henry P. Fletcher expressed his concern: "[A]n administration as fully in control as this one can pack it [the Supreme Court] as easily as an English government can pack the House of Lords." Roosevelt tasked Attorney General Homer Cummings with a year-long "legislative project of great importance". Justice Department lawyers then commenced research on the "secret project", with Cummings devoting what time he could. For the time being, Roosevelt stepped back to watch and wait. Other alternatives were also sought: Roosevelt inquired about the rate at which the Supreme Court denied certiorari, hoping to attack the Court for the small number of cases it heard annually. He also asked about the case of Ex parte McCardle, which limited the appellate jurisdiction of the Supreme Court, wondering if Congress could strip the Court's power to adjudicate constitutional questions. Further, Roosevelt deemed the amendment process in itself too slow when time was a scarce commodity. Unexpected answer Attorney General Cummings received novel advice from Princeton University professor Edward S. Corwin in a letter of December 16, 1936. Corwin had relayed an idea from Harvard University professor Arthur N. Holcombe, suggesting that Cummings tie the size of the Supreme Court's bench to the age of the justices since the popular view of the Court was critical of their age. However, another related idea fortuitously presented itself to Cummings as he and his assistant Carl McFarland were finishing their collaborative history of the Justice Department, Federal justice: chapters in the history of justice and the Federal executive. An opinion written by Associate Justice McReynolds—one of Cumming's predecessors as Attorney General, under Woodrow Wilson—had made a proposal in 1914 which was highly relevant to Roosevelt's current Supreme Court troubles: The content of McReynolds's proposal and the bill later submitted by Roosevelt were so similar to each other that it is thought the most probable source of the idea. Roosevelt and Cummings also relished the opportunity to hoist McReynolds by his own petard. McReynolds, having been born in 1862, had been in his early fifties when he wrote his 1914 proposal, but was well over seventy when Roosevelt's plan was set forth. == Reform legislation ==

Contents The provisions of the bill adhered to four central principles: • allowing the President to appoint one new, younger judge for each federal judge with 10 years service who did not retire or resign within six months after reaching the age of 70 years; • limitations upon the number of judges the President could appoint: no more than six Supreme Court justices, and no more than two on any lower federal court, with a maximum allocation between the two of 50 new judges just after the bill is passed into law; • that lower-level judges be able to float, roving to district courts with exceptionally busy or backlogged dockets; and • lower courts be administered by the Supreme Court through newly created "proctors". The latter provisions were the result of lobbying by the energetic and reformist judge William Denman of the Ninth Circuit Court who believed the lower courts were in a state of disarray and that unnecessary delays were affecting the appropriate administration of justice. Roosevelt and Cummings authored accompanying messages to send to Congress along with the proposed legislation, hoping to couch the debate in terms of the need for judicial efficiency and relieving the backlogged workload of elderly judges. The choice of date on which to launch the plan was largely determined by other events taking place. Roosevelt wanted to present the legislation before the Supreme Court began hearing oral arguments on the Wagner Act cases, scheduled to begin on February 8, 1937; however, Roosevelt also did not want to present the legislation before the annual White House dinner for the Supreme Court, scheduled for February 2. With a Senate recess between February 3–5, and the weekend falling on February 6–7, Roosevelt had to settle for February 5. the proposal to change the Court brushed up against this wider public reverence. Roosevelt's personal involvement in selling the plan managed to mitigate this hostility. In a Democratic Victory Dinner speech on March 4, Roosevelt called for party loyalists to support his plan. Roosevelt followed this up with his ninth Fireside chat on March 9, in which he made his case directly to the public. In his address, Roosevelt decried the Supreme Court's majority for "reading into the Constitution words and implications which are not there, and which were never intended to be there". He also argued directly that the Bill was needed to overcome the Supreme Court's opposition to the New Deal, stating that the nation had reached a point where it "must take action to save the Constitution from the Court, and the Court from itself". In general, however, the overall tenor of reaction in the press was negative. A series of Gallup Polls conducted between February and May 1937 showed that the public opposed the proposed bill by a fluctuating majority. By late March it had become clear that the President's personal abilities to sell his plan were limited: Concerted letter-writing campaigns to Congress against the bill were launched with opinion tallying against the bill nine-to-one. Bar associations nationwide followed suit as well lining up in opposition to the bill. Roosevelt's own Vice President John Nance Garner expressed disapproval of the bill holding his nose and giving thumbs down from the rear of the Senate chamber. The editorialist William Allen White characterized Roosevelt's actions in a column on February 6 as an "elaborate stage play to flatter the people by a simulation of frankness while denying Americans their democratic rights and discussions by suave avoidance—these are not the traits of a democratic leader". Reaction against the bill also spawned the National Committee to Uphold Constitutional Government, which was launched in February 1937 by three leading opponents of the New Deal. Frank E. Gannett, a newspaper magnate, provided both money and publicity. Two other founders, Amos Pinchot, a prominent lawyer from New York, and Edward Rumely, a political activist, had both been Roosevelt supporters who had soured on the President's agenda. Rumely directed an effective and intensive mailing campaign to drum up public opposition to the measure. Among the original members of the committee were James Truslow Adams, Charles Coburn, John Haynes Holmes, Dorothy Thompson, Samuel S. McClure, Mary Dimmick Harrison, and Frank A. Vanderlip. The committee's membership reflected the bipartisan opposition to the bill, especially among better educated and wealthier constituencies. As Gannett explained, "we were careful not to include anyone who had been prominent in party politics, particularly in the Republican camp. We preferred to have the Committee made up of liberals and Democrats, so that we would not be charged with having partisan motives." The committee made a determined stand against the Judiciary bill. It distributed more than 15 million letters condemning the plan. They targeted specific constituencies: farm organization, editors of agricultural publications, and individual farmers. They also distributed material to 161,000 lawyers, 121,000 doctors, 68,000 business leaders, and 137,000 clergymen. Pamphleteering, press releases and trenchantly worded radio editorials condemning the bill also formed part of the onslaught in the public arena. Reaction in Congress Initially, there appeared to be majority support for Roosevelt’s court reform proposals in both Houses of Congress. In the Senate, Joseph T. Robinson claimed that 54 senators supported Roosevelt while in the House Fred Vinson, as noted by one study, "let it be known that F.D.R. could count on at least a majority of one hundred in his chamber." As time went on, however, opposition to the proposal grew steadily amongst members of Congress; culminating in its eventual defeat. House action Traditionally, legislation proposed by the administration first goes before the House of Representatives. However, Roosevelt failed to consult Congressional leaders before announcing the bill, which stopped cold any chance of passing the bill in the House. Republicans then watched from the sidelines as the Democratic party split itself in the ensuing Senate fight. == Senate hearings ==

Joseph T. Robinson. Entrusted by President Roosevelt with the court reform bill's passage, his unexpected death doomed the proposed legislation. The administration began making its case for the bill before the Senate Judiciary Committee on March 10, 1937. Attorney General Cummings' testimony was grounded on four basic complaints: • the reckless use of injunctions by the courts to pre-empt the operation of New Deal legislation; • aged and infirm judges who declined to retire; • crowded dockets at all levels of the federal court system; and • the need for a reform which would infuse "new blood" in the federal court system. Administration advisor Robert H. Jackson testified next, attacking the Supreme Court's alleged misuse of judicial review and the ideological perspective of the majority. However, once the bill's opposition had gained the floor, it pressed its upper hand, continuing hearings as long as public sentiment against the bill remained in doubt. Of note for the opposition was the testimony of Harvard University law professor Erwin Griswold. Specifically attacked by Griswold's testimony was the claim made by the administration that Roosevelt's court expansion plan had precedent in U.S. history and law. The truth of the matter, according to Hughes, was that rejections typically resulted from the defective nature of the petition, not from the court's docket load. == White Monday ==

On March 29, 1937, the court handed down three decisions upholding New Deal legislation, two of them unanimous: West Coast Hotel Co. v. Parrish, and Virginia Railway v. Federation. The Wright case upheld a new Frazier-Lemke Act which had been redrafted to meet the Court's objections in the Radford case; similarly, Virginia Railway case upheld labor regulations for the railroad industry, and is particularly notable for its foreshadowing of how the Wagner Act cases would be decided as the National Labor Relations Board was modeled on the Railway Labor Act contested in the case. == Failure of reform legislation ==

Van Devanter's retirement On May 18, 1937, Associate Justice Willis Van Devanter—encouraged by the restoration of full-salary pensions under the March 1, 1937 Supreme Court Retirement Act (Public Law 75–10; Chapter 21 of the general statutes enacted in the 1st Session of the 75th Congress)— announced his would retire on June 2, 1937, the end of the term. In a letter, he would inform Roosevelt that he made the decision to retire out of "desire to avail myself of the rights, privileges and Judicial service specified in the Act of March 1, 1937, entitled 'An Act to provide for retirement of Justices of the Supreme Court'" This undercut one of Roosevelt's chief complaints against the court—he had not been given an opportunity in the entirety of his first term to make a nomination to the high court. Further, Roosevelt worried about whether Robinson could be trusted on the high bench; while Robinson was considered to be Roosevelt's New Deal "marshal" and was regarded as a progressive of the stripe of Woodrow Wilson, he was a conservative on some issues). However, Robinson's death six weeks later resolved this problem. Finally, Van Devanter's retirement alleviated pressure to reconstitute a more politically friendly court. Committee report The same day Justice Van Devanter announced his retirement, the Senate Judiciary Committee halted Roosevelt's court reform bill. First, an attempt at a compromise amendment which would have allowed the creation of only two additional seats was defeated 10–8. In the meantime, he worked to finish another compromise which would abate Democratic opposition to the bill. Ultimately devised was the Hatch-Logan amendment, which resembled Roosevelt's plan, but with changes in some details: the age limit for appointing a new coadjutor was increased to 75, and appointments of such a nature were limited to one per calendar year. Robinson led the charge, holding the floor for two days. Procedural measures were used to limit debate and prevent any potential filibuster. Roosevelt further alienated his party's Senators when he decided not to attend Robinson's funeral in Little Rock, Arkansas; despite this, Roosevelt did previously attend Robinson's state funeral which was held in Washington D.C. On returning to Washington, D.C. from Arkansas, Vice President John Nance Garner informed Roosevelt, "You are beat. You haven't got the votes." On July 22, the Senate voted 70–20 to send the judicial-reform measure back to committee, where the controversial language was stripped by explicit instruction from the Senate floor. By July 29, 1937, the Senate Judiciary Committee—at the behest of new Senate Majority Leader Alben Barkley—had produced a revised Judicial Procedures Reform Act. This new legislation met with the previous bill's goal of revising the lower courts, but without providing for new federal judges or justices. Congress passed the revised legislation, and Roosevelt signed it into law, on August 26. This new law required that: • parties-at-suit provide early notice to the federal government of cases with constitutional implications; • federal courts grant government attorneys the right to appear in such cases; • appeals in such cases be expedited to the Supreme Court; • any constitutional injunction would no longer be enforced by one federal judge, but rather three; and • such injunctions would be limited to a sixty-day duration. == Consequences ==

on September 17, 1937, FDR lashed out at the Supreme Court in a controversial address to the nation from the base of the Washington Monument. A political fight which began as a conflict between the President and the Supreme Court turned into a battle between Roosevelt and the recalcitrant members of his own party in the Congress. With the retirement of Justice Willis Van Devanter in 1937, the Court's composition began to move in support of Roosevelt's legislative agenda. By the end of 1941, following the deaths of Justices Benjamin Cardozo (1938) and Pierce Butler (1939), and the retirements of George Sutherland (1938), Louis Brandeis (1939), James Clark McReynolds (1941), and Charles Evans Hughes (1941), only two Justices (former Associate Justice, by then promoted to Chief Justice, Harlan Fiske Stone, and Associate Justice Owen Roberts) remained from the Court Roosevelt inherited in 1933. As future Chief Justice William Rehnquist observed: == Timeline ==